The best examples for teaching trial advocacy come from actual trials. Concrete always trumps abstract for learning. The George Zimmerman trial opening statements provided a lot of grist for my mill.
1. The golden minute
Let’s start at the beginning. I have written before on the first and last minute – that period of time, not limited to a minute, but the first and last paragraphs of the presentation. [Opening Argument: The First Minute; Opening Argument: The First Minute (Part 2); The First Minute (again)] If you can’t tell, I am obsessed with it. It is the time when everyone is listening. They are anxiously waiting for your words. It is the most fertile time to plant your ideas. You either capture their attention or lose it.
I renamed these minutes “golden” because their worth should be measured in gold. This is the time to persuade.
John Guy opened with a powerful and shocking statement:
“‘Fucking punks. Those assholes, they always get away.’
Those were the words in that grown man’s mouth as he followed in the dark a 17-year-old boy who he didn’t know … Those were the words in that man’s chest when he got out of his car armed with a loaded semi-automatic pistol and two flashlights to follow on foot Trayvon Benjamin Martin, who was walking home from a 7-Eleven … Those were the words in that defendant’s head moments before he pressed that pistol into Trayvon Martin’s chest and pulled that trigger.”
This was a model of how to do this. Note the repetition of the phrase “Those were the words….” Classic rhetoric. I would use a clip of this beginning to teach the method. He sure got my attention and I am sure the jury’s. Also proof that sometimes less is more. Succinct, to the point, digestible, compelling.
My only criticism: He said good morning, then immediately launched into the statement. He needed a long pause for dramatic effect. Good Morning……………Fucking punks —— Those assholes ——- They always get away……….
In your pause, look the jurors in the eyes. Restrain yourself. Silently intone your first sentence. Then start speaking.
Admittedly they had a significant problem following the state’s powerful open. It required a lot of thought and work to fashion one to match or exceed theirs. Clearly the defense put a lot of work into the opening and it showed later, but it needed serious editing and better choreography. And the introduction was a disaster.
Don West began: “This is a sad case of course. A young man lost his life, another is fighting for his.” [I liked this.]
Then he explains to the jury why Zimmerman’s parents are not allowed in the courtroom [a non-sequitur] but then says:
“I think the evidence will show that this is a sad case and there are no monsters here.”
[Your client thought this guy was going to kill him. So why the apologetic start? This is taking political correctness too far. Forget being nice. This is the time to go for the jugular. This sounds like a continuation of the state’s opening. But it would get worse.]
“Let me say, I would like to tell you a little joke. I know how that may sound a bit weird in this context under these circumstances, but I think you’re the perfect audience for it. As long as you don’t — if you don’t like it or don’t think it’s funny or inappropriate that you don’t hold it against Mr. Zimmerman. Hold it against me if you want, but not Mr. Zimmerman. I have your assurance you won’t,” West said.
George Zimmerman who?
All right. Good. You’re on the Jury.
Nothing? That’s funny. After what you folks have been through the last two or three weeks.”
I was physically cringing as he introduced the joke. And when you have to explain the joke… I understand the idea. Humanize. Lighten the atmosphere. But it fell flat. Like infamous Wayne Williams closing when his lawyer asked the jury to feel William’s unmuscled flabby body and no one did.
I found it as jarring and inappropriate as blowing bubblegum at a Supreme Court oral argument.
A retired judge named Kevin Ross opined on the 105.9 Detroit radio show that the knock-knock joke was brilliant. But the reason doesn’t help the lawyers – the next day discussion would be how bad the lawyer was instead of Zimmerman.
And one of the lawyer-wags on the FACDL website commented that the “Florida Rules of Criminal Procedure requires that the opening argument knock-knock joke be used in conjunction with the closing argument knock-knock joke, which goes something like this…
Not guilty, that’s who…
This follows the usual rule that when client makes the Tonight or Letterman Show monologue they are finished.